Organizations, Parents and Individuals Concerned with Special Education

Impartial Hearing Officers

Commissioner’s Advisory Panel for Special Education Services

FROM:

James P. DeLorenzo

SUBJECT:

Chapter 378 of the Laws of 2007 - Guidance on Parentally
Placed Nonpublic Elementary and Secondary School Students with Disabilities
Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004
and New York State (NYS) Education Law Section 3602-c

The purpose of this memorandum is to inform school districts
of their responsibilities to provide special education services to students
with disabilities who are enrolled in nonpublic elementary or secondary schools
by their parents beginning with the 2007-08 school year and thereafter pursuant
to section 3602-c of Education Law, as amended by Chapter 378 of the Laws of
2007. This memorandum replaces
the guidance issued in April 2007 entitled RevisedInterim Guidance
on Parentally Placed Nonpublic Elementary and Secondary School Students with
Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA)
2004 and New York State (NYS) Education Law Section 3602-c.

Chapter 378 of the
Laws of 2007 was signed into law on July 18, 2007. This Chapter of Laws
includes amendments to section 3602-c of Education Law relating to the education
of students with disabilities who are parentally placed in nonpublic elementary
and secondary schools. Section 3602-c of Education Law was amended to
comply with section 612(a)(10) of IDEA, as reauthorized in 2004, and federal
regulations in 34 Code of Federal Regulations (CFR) sections 300.130 to 300.147
to require the public school districtwhere
the nonpublic school is located to provide students with
disabilities enrolled in nonpublic elementary and secondary schools by their
parents with special education services. Changes to State law were made
to the extent necessary to comply with federal requirements while still preserving
the provisions of preexisting law that entitled all students enrolled in nonpublic
elementary and secondary schools by their parents who were residents of the
State to have access to those special education services they would have received
if they attended public school. Attachment 4 provides a copy of the statutory
language in section 3602-c, as amended by Chapter 358 of the Laws of 2007,
effective June 30, 2007.

The information in this memorandum does notapply to students
with disabilities:

placed in, or referred to private schools by public agencies such as school
district placements of students in approved private schools, Special Act
School Districts, and State-supported or State-operated schools;

enrolled in Charter schools;

home schooled by their parents;

in private day care or preschool programs;

enrolled by their parent in a public school outside of their district
of residence; or

parentally placed in drug rehabilitation centers or hospitals.

The attached guidance describes the responsibilities
of the school district where a nonpublic school is located regarding:

child find and individual evaluations,

committee on special education (CSE) responsibilities,

provision of special education services to NYS residents and out-of-state
residents,

consultation with nonpublic schools and parent representatives,

due process responsibilities,

data collection and reporting, and

use of federal funds.

Attachment 3 to this
memorandum includes a sample letter to parents who place their children in
nonpublic schools. We encourage all school districts to take steps to
inform parents of these new requirements using information provided in this
sample letter.

Questions regarding
this memorandum may be directed to the Special Education Policy Unit at 518-473-2878,
the Office for Nonpublic School Services at (518) 474-3879, or to the Special
Education Quality Assurance (SEQA) Office at:

Central Regional Office

(315) 428-3287

Eastern Regional Office

(518) 486-6366

Hudson Valley Regional Office

(518) 473-1185 or (914) 245-0010

Long Island Regional Office

(631) 884-8530

New York City Regional Office

(718) 722-4544

Western Regional Office

(585) 344-2002

Attachment 1: Guidance on Parentally Placed Nonpublic Elementary
and Secondary School Students with Disabilities Pursuant to the Individuals
with Disabilities Education Act (IDEA) 2004 and NYS Education Law Section 3602-c

Attachment 2: Sample Form: Written Affirmation of Consultation
with Nonpublic School Representatives Concerning Special Education Services

Attachment 3: Sample Letter to Parents Who Place Their
Children in Nonpublic Schools

Attachment 4: Section 3602-c, as amended by Chapter 378
of the Laws of 2007

Attachment 1

Guidance on Parentally Placed Nonpublic Elementary
and Secondary School Students with Disabilities Pursuant to the Individuals
with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education
Law Section 3602-c

Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007,
establishes New York State’s (NYS) requirements relating to the provision
of special education to students with disabilities enrolled in nonpublic elementary
and secondary schools by their parents. Under the provisions of section
3602-c, students with disabilities placed by their parents in nonpublic
schools are entitled to receive special education services in accordance with
an individualized education services program (IESP) from the public school
district in which the nonpublic school is located while they receive general
education from the nonpublic school where their parents enrolled them.

Federal regulation (34 Code of Federal Regulations (CFR) section 300.130)
defines parentally placed private (or nonpublic) school children with disabilities
as "children with disabilities enrolled by their parents in private, including
religious, schools or facilities that meet the definition of elementary or
secondary school, other than children with disabilities covered under 34 CFR
300.145-147 – “Placement of children by parents if free appropriate
public education (FAPE) is at issue."

For the purpose of this memorandum:

District of location means the school district within whose
boundaries a nonpublic elementary or secondary school is located.

District of residence means the school district where the
student legally resides.

Elementary or secondary school means a school
providing an education program to students in one or more grades Kindergarten
through grade twelve.

The school district of location must consult with nonpublic
school representatives and representatives of parents of parentally placed
nonpublic school students with disabilities enrolled in nonpublic elementary
and secondary schools located within the boundaries of the school district
during the design and development of special education and related services
for students with disabilities and throughout the school year to ensure that
parentally placed nonpublic school students identified through the child find
process can meaningfully participate in the special education and related services. The
school district must engage in consultation regarding the child find process,
provision of special education services, and use of federal funds. Consultation
is not specific to individual students. Individual services are determined
by the Committee on Special Education (CSE). The consultation process
must be timely and meaningful and include discussion of the following.

1. Child Find:

The child find process and how parentally placed nonpublic
school students suspected of having a disability can participate equitably,
including how parents, teachers and nonpublic school officials will be
informed of the process.

How the consultation process will operate throughout the school year to
ensure that parentally placed nonpublic school students with disabilities
identified through the child find process can meaningfully participate in
special education and related services.

2. Provision of Special Education Services:

How, where and by whom special education and related
services will be provided to such students, including a discussion of types
of services, such as direct services and alternate service delivery mechanisms. For example:

a discussion of how services might be provided could include a discussion
of scheduling for resource room services;

a discussion of where services might be provided could include a discussion
of those services that would generally be provided onsite and offsite of
the nonpublic school or the factors that would be considered in the determination
of where services would be provided;

a discussion of who will provide services might include a discussion
of services that will be provided by the public school district directly
and others that may be provided through contract with another agency.

For students who reside out-of-state but are parentally placed in nonpublic
schools located in the geographic boundaries of the public school, how a
proportionate share of federal IDEA Part B funds will be spent on special
education services to such students.

How, if the school district disagrees with the views of the nonpublic school
officials on the provision of services or the types of services, whether
provided directly or through a contract, the school district shall provide
to the nonpublic school officials a written explanation of the reasons why
the school district chose not to provide services directly or through a contract.

3. Use of Federal Funds

The determination of the proportionate amount of federal
funds available to serve parentally placed nonpublic school students with
disabilities, including the determination of how the amount was calculated.

How such services will be apportioned if funds are insufficient to serve
all parentally placed out-of-state resident students with disabilities and
how and when these decisions will be made. (Note: For all NYS students,
the school district must provide services pursuant to the student’s
IESP, regardless of the apportionment of federal funds. For students
who are not New York residents who are parentally placed in NYS nonpublic
schools, the school district would need to consult on how such students
can participate equitably consistent with the federal proportionate share
of IDEA funds.)

The nonpublic school representatives must provide written affirmation of their
participation in the consultation process to the public school district of
location. If the nonpublic school representative does not provide such
affirmation within a reasonable period of time, the school district must forward
the documentation of the consultation process to the State Education Department
(SED). Attachment 2 provides a sample form for school districts to use to document
its consultation process.

See Consultation Questions and Answers

II. CHILD FIND
REQUIREMENTS

The school district of location is responsible for child find
for students who are parentally placed in nonpublic schools located in their
geographic boundaries. Child find is the practical method the public
school district will use to identify, locate and evaluate students suspected
of having disabilities who are parentally placed in nonpublic schools.

The child find activities must be similar to activities undertaken for
students with disabilities in its public schools and must be completed in
a time period comparable to that for other students attending public schools
in the school district.

Each public school district must consult with the nonpublic
schools where students are parentally placed to determine an accurate count
of students with disabilities attending such schools and receiving special
education services.

The district of location must have procedures for conducting
evaluations and reevaluations of students enrolled in nonpublic schools
located within their district within required timeframes and at no cost
to parents.

Unless the parent and district agree otherwise, the
district of location must conduct a reevaluation at least once every three
years of each eligible parentally placed nonpublic school student with
a disability, even if the student is not currently receiving special education
services. It is important that required reevaluations are conducted because
they provide current data needed to determine the total number of eligible
students which is used in calculating the proportionate share of funds
that must be used on services.

NOTE: If, prior to July 1, 2007, a student suspected
of having a disability had been referred to the CSE of the student's district
of residence, and, for the 2007-08 school year, the student with a disability
is parentally placed or is going to be parentally placed in a nonpublic school
that is not located in the school district where the student legally resides,
the results of such evaluation, with parental consent, should be shared with
the CSE of the district of location. The district of location may adopt
such evaluation as its own or conduct a new evaluation in whole or in part.

If a student with a disability is parentally placed,
or is going to be parentally placed in a nonpublic school that is not located
in the school district where the student legally resides, parental consent
must be obtained before any personally identifiable information about the
student relating to special education is shared between officials in the
public school district of location and officials in the public school district
of residence. Therefore, parent consent is required before sharing individual
evaluations, individualized education programs (IEPs), IESPs or Services
Plans and other special education records between the district of location
and the district of residence.

Consent for initial evaluations and reevaluations:

If a parent who has placed a student with a disability in a nonpublic school
at his/her own expense does not provide consent for the initial evaluation
or the reevaluation, or the parent fails to respond to a request to provide
consent, the school district may not use the consent override procedures
described in 34 CFR sections 300.300(a)(3) and (c)(1) and the school district
is not required to consider the student as eligible for special education
services under 34 CFR sections 300.132 through 300.144.

Note: There is no federal or State requirement for
parental consent to share information between the school district of location
and the nonpublic school the student intends to enroll in or is enrolled in.

IV. PROVISION OF SPECIAL EDUCATION
SERVICES

FOR STUDENTS WHO ARE RESIDENTS OF NYS, THE FOLLOWING REQUIREMENTS
APPLY:

Development of the IESP

The CSE of the district of location must develop an
IESP for students with disabilities who are NYS residents and who are enrolled
by their parents in nonpublic elementary and secondary schools located
in the geographic boundaries of the public school.

The IESP must be developed in the same manner and with the same contents
as an IEP is developed.

The CSE must ensure that
a representative of the nonpublic school where the student attends is included
in the meeting where the IESP is developed. If the representative cannot
attend, the school district must use other methods to ensure participation
by the nonpublic school, including individual or conference telephone calls.

The
IESP must be reviewed periodically, but not less than annually.

NOTE: If an IEP was developed
for the 2007-08 school year by the district of residence and the student with
a disability is parentally placed, or is going to be parentally placed in a
nonpublic school that is not located in the school district where the student
legally resides, with parent consent the district of residence must
forward the IEP to the CSE of the district of location. Such IEP will
then be deemed to be an IESP and the school district of location must provide
the services, unless or until it is amended by the district of location.

Parent Request for Special Education Services

The parent must request special education services in writing to the school
district of location by June 1 preceding the school year for which
the request for services is made, except that when a student is first identified
as a student with a disability after the first day of June preceding the
school year for which the request is made and prior to the first day of April
of such current school year, the parent must submit the written request for
services within 30 days after the student was first identified.

Note: For the 2007-08 school year,
parents had until August 18, 2007 to request that the district of location
provide special education services to his/her child.

Provision of Special Education Services

The school district of location is responsible to provide
special education services pursuant to the IESP developed for each eligible
student. Services
must be provided on an equitable basis as compared to other students with
disabilities attending public or nonpublic schools located within the school
district.

The manner (how, where and by whom) special education
and related services will be provided to students is determined by the
district of location based on the consultation process and in consideration
of the individual needs of the student. The final decision with respect
to services provided to individual students is made by the CSE of the district
of location. Services
provided to parentally placed students may be provided on the site of the
private school or at another location.

See Provision of Services Questions and Answers

Due Process Complaints

A parent of a student who is a NYS resident who disagrees with the individual
evaluation, eligibility determination, recommendations of the CSE on the IESP
and/or the provision of special education services may submit a Due Process
Complaint Notice to the school district of location.

Process for the School District of Location to Recover its Costs from
the School District of Residence for NYS Resident Students

Beginning with the 2007-08 school year, the actual cost for
CSE administration, evaluations and special education services provided to
a student with a disability who is a resident of NYS but a nonresident to the
district of location may be recovered from the student's school district of
residence as follows:

If the district of location has parent consent to share personally
identifiable special education information about the student with the district
of residence, the district of location is entitled to bill the district of
residence for the costs of evaluation, CSE administration and providing services. The
amount charged by the school district of location cannot exceed the actual
cost to the school district of location, after deducting any costs paid with
federal or State funds.

OR

In the event the parent has not provided consent to release personally identifiable
information concerning their child, the school district of location must
submit to the Commissioner, in a form prescribed by the Commissioner (under
development), a claim for costs of services, evaluation costs, and CSE administrative
costs.

Parental consent must be obtained before any personally identifiable information
about the student relating to special education is shared between officials
in the public school district of location and officials in the public school
district of residence. Therefore, parent consent to share special education
information between the two public school districts is required before billing
a district of residence for the cost of special education services provided
to the student by the district of location.

Note: Additional
guidance on the process for the school district of location to recover its
costs from the school district of residence for NYS resident students will
be issued in a subsequent memorandum.

FOR OUT-OF-STATE STUDENTS WITH DISABILITIES PARENTALLY PLACED IN NONPUBLIC
SCHOOLS LOCATED IN NYS, THE FOLLOWING REQUIREMENTS APPLY:

Child Find

A school district in which nonpublic elementary schools and secondary schools
are located must, in carrying out its child find requirements, include parentally
placed nonpublic school children who reside in a state other than the state
in which the nonpublic schools that they attend are located (34 CFR section
300.131(f)).

The school district of location must evaluate an out-of-state parentally placed
student suspected of having a disability. Pursuant to federal requirements,
the cost of the evaluation cannot be billed to the district of residence
or the state where the student legally resides, nor can the federal Part B
proportionate share of dollars be used for child find, including evaluations.

Parent Request for Services

The June 1 date to request services does not apply to residents of another
state who are parentally placed in a nonpublic school located in NYS.

Services Plan

The school district of location is obligated to provide special education
services to an eligible student who legally resides in another state and is
parentally placed in a nonpublic school located in NYS only to
the extent that such services provide the student equitable participation in
the services funded with federal IDEA funds. The services to be provided to
out-of-state students must be documented on a Services Plan that is developed
by the CSE of the district of location. The Services Plan is the written plan
that describes the specific special education and related services that the
district of location will provide to the student, consistent with the services
that the school district of location has determined through the consultation
process to be provided to such students in relation to the proportionate
share of federal IDEA Part B dollars.

The Services Plan must, to the extent appropriate, be developed, reviewed
and revised by the CSE of school district of location consistent with the requirements
for development of an IEP. The parent(s) of the student must be invited
to the meeting and the district of location must also ensure that a representative
of the nonpublic school where the student attends be included in the meeting
where the services plan is developed. If the nonpublic school representative
cannot attend, the school district must use other methods to ensure participation
by the nonpublic school, including individual or conference telephone calls.
The Services Plan must be reviewed periodically, but not less than annually.

Due Process

A parent of an out-of-state student suspected of having a disability has the
right to mediation or an impartial hearing for disputes regarding evaluations
and an eligibility determination. Since out-of-state resident students
have no individual right to services, there is no right to mediation or an
impartial hearing for disputes regarding services.

Costs for Services

The provision of services to out-of-state students is limited to services
based on a proportionate share of federal IDEA funds. Federal law provides
no mechanism for interstate billing,

In the 2006-07 school year, school districts reported data on the PD-1/4 report
regarding the numbers of resident and nonresident parentally placed students
with disabilities attending nonpublic schools located in the school district
and the numbers of resident students who are parentally placed in nonpublic
schools located in other school districts. These data were used to calculate
a proportionate per pupil amount of IDEA funds for services to students with
disabilities attending nonpublic schools for the 2007-08 school year.

In the 2007-08 school year, it is anticipated that special education data
previously collected on the PD-1/4 report will be collected through SED’s
Student Information Repository System (SIRS). This system will collect
data at the individual student level. Directions will be provided to
school districts to report enrollment of all parentally placed students with
disabilities in nonpublic schools located in the school district. For
each student, specific information will be requested to allow SED to complete
its State and federal reporting requirements, including information needed
to calculate the proportionate share of federal funds for each eligible student.

The district of location must maintain in its records and provide SED the
following information related to parentally-placed nonpublic elementary and
secondary school students:

the number of students evaluated;

the number of students determined to be students with disabilities;
and

the number of students served (i.e., receiving special education services).

VI. PROPORTIONATE SHARE OF FEDERAL
DOLLARS

In the 2006-07 school year, the data that school districts reported on the
PD-1/4 report (see above) were used to calculate a proportionate per pupil
amount of IDEA funds for services to students with disabilities attending nonpublic
schools for the 2007-08 school year. Also, in computing the 2007-08 IDEA federal
flow through allocation for every school district, SED used the total K-12
enrollment of all students attending public and nonpublic schools located in
the school district as reported on the Basic Education Data System (BEDS) forms
as the “population factor” in the allocation formula. In
previous years, SED used the K-12 enrollment of public and nonpublic students
residing in the school district as the “population factor”.

This minimum amount must be spent on services for parentally placed nonpublic
elementary and secondary school students with disabilities during the school
year. If, by the end of the fiscal year, a school district does not expend
the entire proportionate share of its Part B funds on students with disabilities
placed by their parents in nonpublic schools, the school district must obligate
the remaining funds for special education for such students during the carry-over
period.

See Expenditure of Federal Funds Questions and Answers

VII. QUESTIONS AND ANSWERS

Nonpublic Schools

What is the definition of a
nonpublic school for purposes of section 3602-c of Education Law?

A nonpublic school includes nonpublic elementary and secondary schools chartered
by the Board of Regents, nonpublic secondary schools registered by the Board
of Regents, and other nonpublic elementary and secondary schools determined
by the public school district to be providing instruction substantially equivalent
to that provided in the public schools. A list of nonpublic schools found at http://www.p12.nysed.gov/irs/nys-schools/
nonpublic/sectionI.pdf can
assist school districts in identifying nonpublic schools for purposes of
the consultation requirements. Additional assistance may be provided
by the Office for Nonpublic School Services at (518) 474-3897.

If a nonpublic school has different sites in more than one school
district, which school is the district of location?

The school district where the nonpublic school is geographically located
would be the district of location for students attending that school, regardless
of the address for administration (or BEDS code) of the nonpublic school.

What steps should a public school district take to arrange for
consultation with officials of nonpublic schools located within its geographic
boundaries and with representatives of parents of parentally placed students
with disabilities?

To arrange for consultation, a public school district should
send a letter to representatives of each nonpublic school located in its
geographic boundaries inviting them to participate in a meeting or meetings
to discuss the required consultation topics. In addition to nonpublic
school officials, the school district must consult with representatives of
parents of parentally placed students with disabilities A list of nonpublic
schools is provided by geographic region at http://www.nysed.gov/admin/admindex.html. (Nonpublic
schools are designated under “record type” on this list and also
include approved private schools where school districts place students.)
The Directory of Public and Nonpublic Schools and Administrators is available
at http://www.nysed.gov/admin/bedsdata.html.

Each of the nonpublic school officials should be asked to
sign an affirmation that they participated in the consultation process. In the event nonpublic
school officials decline participation or to sign the affirmation, the public
school district must submit documentation to SED of the consultation process. See Attachment
2.

Must the public school district also consult with officials of
approved private schools where students are placed by school districts?

The consultation requirements of 34 CFR section 300.134
do not apply to students placed by CSEs in approved private schools. However,
if the approved private school also accepts students who are parentally placed
and paying tuition, the public school must also consult with officials of
these schools, with respect to those parentally placed students.

Can nonpublic school officials file a complaint with SED or the
United States Education Department (USED) on the consultation process?

Yes. A nonpublic school official has the right to submit a complaint
to SED that the public school district did not engage in consultation that
was meaningful and timely, or did not consider the views of the nonpublic school
officials. The complaint submitted by the nonpublic school official must
include the basis of the noncompliance. If the nonpublic school official
is dissatisfied with the SED complaint findings, he or she may submit a complaint
to USED. A complaint submitted by a nonpublic school official may be
submitted using the sample form found at http://www.p12.nysed.gov/specialed/publications/policy/covercomplaint.htm.

Child Find

Which school district has the responsibility to conduct the evaluation
to determine if a parentally placed nonpublic school student is eligible
for special education?

The district of location is responsible to conduct the
evaluation to determine a student’s eligibility for special education. The
district of location is also the district that must obtain the informed written
consent of the parent to conduct the initial evaluation or reevaluation.

Which school district would convene a meeting
of the CSE to determine the student’s eligibility and develop the
IESP?

If a student is parentally placed in a nonpublic school
and is suspected of having a disability, the district of location is responsible
to conduct the CSE meeting to determine a student’s eligibility for
special education and, if determined eligible for special education, to recommend
the special education services the student will receive and document such
recommendations on an IESP.

Is it possible for a parent to request evaluations from the district
where the nonpublic school is located as well as the district where the
child resides?

Yes, but it is generally not advisable because subjecting
a student to repeated testing by separate school districts in close proximity
of time may not be the most effective or desirable way to obtain individual
evaluations that are meaningful measures of whether a student has a disability
or of obtaining an appropriate assessment of the student’s educational
needs.

If the district of residence receives a request for an evaluation of a student
suspected of having a disability who is parentally placed in a nonpublic school
in another district, and the parent is not seeking to enroll the student in
the public school, the district of residence should notify the parent of his/her
right to request an evaluation from the district of location and the development
of an IESP from the district of location. The district of residence, with parental
consent to share information, should facilitate the referral to the district
of location.

Is parent consent required when having a representative of the
nonpublic school participate in the CSE meeting?

No. Parent consent is not required to share information between the district
of location and the nonpublic school. The meeting notice would inform the parents
of the individuals who are expected to attend the meeting.

Provision of Services

What is meant by services
provided on an "equitable basis"?

The term "equitable basis" means that special
education services are provided to parentally placed nonpublic school students
with disabilities in the same manner as compared to other students with disabilities
attending public or nonpublic schools located within the school district.

The new State legislation is intended to maintain the level
of services provided to NYS nonpublic students with disabilities through
IEPs under the former provisions of Education Law section 3602-c. Accordingly, parentally placed nonpublic
students must be provided services based on need and the same range of services
provided by the district of location to its public school students must be
made available to nonpublic students, taking into account the student’s
placement in the nonpublic school program. A nonpublic student may not
be denied services that a public school student would receive based solely
upon his or her status as a nonpublic student, nor can a district deny services
to a nonresident nonpublic school student that a resident nonpublic school
student would receive. The converse is also true-- a school district
of location is not required to provide greater services to a nonpublic student
than a public school student would receive under the Rowley standard
(i.e., services reasonably calculated to enable the child to receive some educational
benefit (458 U.S. at 206-07)).

Must the district of residence develop an IEP for a student who
is parentally placed and conduct annual reviews of this IEP?

USED has provided guidance that states: "If a determination is made through
the child find process by the LEA (local educational agency) where the private
school is located that a child needs special education and related services
and a parent makes clear his or her intent to keep the child enrolled in the
private elementary or secondary school located in another LEA, the LEA where
the child resides need not make FAPE available to the child." Therefore,
if the parents make clear their intention to keep their child enrolled in
the nonpublic elementary or secondary school, the district of residence need
not develop or annually review an IEP for the student.

For the 2007-08 school year, must the school district of location
conduct CSE meetings to develop new IESPs?

In cases where an IEP has been developed at an annual review
meeting conducted in the 2006-07 school year by the district of residence,
and parent consent has been obtained to share personally identifiable special
education information between the district of location and the district of
residence, the district of residence must forward the IEP developed at the
student's annual review to the district of location. For the 2007-08
school year, the IEP developed and shared with the district of location would
be deemed an IESP and the district of location must provide the services
recommended in the IEP, unless and until the district of location amends
it and develops a new IESP.

Is it permissible for the district of location to contract with
another public agency, including the district of residence, for individual
evaluations?

Yes. The district of location is responsible for child find,
including evaluations. However
it can fulfill this responsibility directly, or through contract with another
public agency, including the district of residence provided that the parent
has provided consent to share special education information between the district
of residence and the district of location.

Is it permissible for
the district of location to contract with the student’s district
of residence to provide special education services?

Yes. Nothing in IDEA or State law would preclude the district
of location from contracting with the district of residence as a third party
provider to fulfill its obligations to provide special education services,
except that parent consent to share information between the district of residence
and the district of location is required.

Can the school district of location contract with a Board of Cooperative
Educational Services (BOCES) to provide special education services to students
with disabilities parentally placed in nonpublic schools in the geographic
boundaries of their school district?

Yes. Section 3602-c(3) of Education Law continues
to authorize boards of education, with the consent of the Commissioner, to
contract with BOCES, consistent with Education Law section 1950, to provide
the services required by section 3602-c.

Which school district is responsible for the provision of special
education services to parentally placed nonpublic school students when
the school district where the nonpublic school is located provides for
the education of their students by contract with another school district
(e.g., K-8, K-3, K-1 school district)? [Sections 2040-2045 of
Education Law]

The school district of location is responsible to provide
the special education services. However, consistent with the manner
in which services are provided to other students in their school district,
the school district of location could negotiate in its contract with the
receiving school district that such district would also provide special education
services to parentally placed students with disabilities.

Are children who are age eligible (age 5 years by December 1) whose
parents enroll them for an additional year in a preschool or nursery school
program eligible for special education services pursuant to section 3602-c
of Education Law?

No. Section 3602-c of Education Law pertains only to parental placements
in nonpublic elementary and secondary schools. It does not apply to a
child who is less than compulsory school age continuing in a preschool program,
even if the preschool program is located in the same building as a kindergarten
or other elementary grade classrooms. These students would continue to be the
responsibility of the district of residence through the CSE. Also See
question H- 3 of USED guidance found at:http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C1%2C

Does section 3602-c of Education Law require
services to be provided to students with disabilities during the summer?

No. The definition of “services” in section 3602-c(1)(a)
of the Education Law is limited to services provided in programs operated during
the course of the regular school year and does not apply to services
provided in summer programs.

Must the IESP indicate that the student has been parentally placed
in a nonpublic school?

Yes. Since an IESP must have the same components as an IEP, which includes
a recommendation for placement, the IESP should indicate placement as “student
is parentally placed in a nonpublic school.”

Are students parentally placed in a nonpublic school entitled to
declassification support services?

No. Only students who are enrolled in public
schools are entitled to declassification support services.

Can the proportionate share of federal funds be spent on child
find activities, including the cost of the evaluation?

No. Section 612(a)(10)(A)(ii) of IDEA (child
find requirements) states that the cost of carrying out child find requirements
may not be considered in determining whether a school district has met its
obligations to expend a proportionate amount of federal funds.

Can the federal IDEA funds be given to the nonpublic school to
provide the special education services?

No. The control of funds used to provide special education
services and title to materials, equipment and property purchased with those
funds must be in the public school district and the public school district
must administer the funds and property. 34 CFR section 300.142 adds that “An local
educational agency (LEA) may use funds available under sections 611 and 619
of the Act to pay for the services of an employee of a private school to provide
services… if the employee performs the services outside of his or
her regular hours of duty; and the employee performs the services under public
supervision and control.”

What can the proportionate share of federal IDEA funds be spent
on?

The proportionate share of federal dollars must be spent
on the provision of special education services. The proportionate share of
IDEA funds may not be spent on child find activities, including evaluations,
nor may they be spent on administrative functions such as CSE meetings. State
and local funds may supplement and in no case supplant the proportionate
amount of federal funds required to be expended pursuant to IDEA 2004.

Transportation

If special education services are to be provided to a student at
a site other than the nonpublic school, which school district is responsible
to arrange and pay for transportation necessary for the student to receive
the special education services?

34 CFR section 300.139(b) requires the school district of
location to provide a parentally-placed nonpublic elementary or secondary
school student with a disability with transportation from the student's school
or the student's home to a site other than the nonpublic school and from
the service site to the nonpublic school, or to the student's home, depending
on the timing of the services, if necessary for the student to receive special
education services. The
cost of transportation can be included in determining whether the school
district has met its requirement to expend a proportionate share of IDEA
Part B dollars to serve parentally-placed nonpublic school students with
disabilities.

Which school district is responsible to provide transportation
for the student to and from the student's home and the nonpublic school?

The school district of residence remains responsible to
provide transportation to parentally placed nonpublic school students to
and from the student’s
home pursuant to section 3635 of Education Law. However, if the district
of location chooses to provide special education services to a student before
or after the school day at its own school or another location, it must arrange
transportation from the special education services to or from his or her
home. For more information see:http://www.p12.nysed.gov/nonpub/
HANDBOOKonServicestoPupilsAttendingNonpublicSchools/
Handbookpage.htm

Section 4402(4)(d) of Education Law requires the district
of residence to arrange for suitable transportation up to 50 miles to and
from the nonpublic school the student attends when the student has been identified
as a student with a disability by the CSE and such student attends such school
for the purpose of receiving services or program similar to special educational
programs recommended for such student by the CSE of the district of residence.

Attachment 2

SAMPLE FORM

IDEA Section 611(a) (10) WRITTEN AFFIRMATION OF CONSULTATION WITH
NONPUBLIC SCHOOL REPRESENTATIVESCONCERNING SPECIAL EDUCATION SERVICES

School districts where nonpublic elementary and secondary schools are located
must maintain documentation of timely and meaningful consultations
with participating nonpublic schools signed by the representatives of such
schools. New York State has provided a sample form (attached) that
districts may use in order to secure the signed affirmation by nonpublic
school representatives of participation in the required consultation. In
the event that a school district chooses not to use the State Education
Department (SED) sample form, the district must maintain some form of documentation
that establishes:

the date(s) on which the timely and meaningful consultation occurred;

documentation of subject areas covered during the consultation process;
and

a signed and dated statement from each nonpublic school representative
affirming that he/she participated in the consultation process.

In the event the district is unable to secure a written affirmation from
one or more of the nonpublic school representatives either due to a refusal
or failure to attend the consultation, or failure to submit the signed confirmation, the
district must provide documentation to the State showing that
the school in question was invited to the consultation. If a nonpublic
school does not agree to consult with the district, then the district must
maintain documentation of its attempts to secure the school's participation
at the consultation. Such documentation should include:

a copy of the agenda used at the consultation;

a copy of the notice form or letter utilized by the district to notify
the nonpublic schools of the consultation;

copies of signed affirmations by nonpublic school participants at the
consultation; and

if necessary, copies of all invitations provided to nonpublic school
representatives who either refuse to sign the affirmation or fail to attend
the consultation.

Such documentation should be sent to:

New York State Education Department
Office of Vocational and Educational Services for Individuals with Disabilities
(VESID)
ATTN: Special Education Quality Assurance (SEQA)
Room 1624, One Commerce Plaza
Albany, NY 12234

Sample Form: This is not an official New York State Education
Department or U.S.Education Department document.

Written Affirmation of Consultationwith Nonpublic School Representatives concerning Special Education
Services

I hereby affirm that I was invited to and participated in the nonpublic/parochial
school providers' consultation meeting sponsored by (SCHOOL DISTRICT) and held
on (DATE) in accordance with the requirements of the Individuals with Disabilities
Education Act (IDEA). I understand that during the course of the consultation,
the following issues were required to be discussed:

the child find process and how parentally placed nonpublic school students
suspected of having a disability can participate equitably, including how
parents, teachers and nonpublic school officials will be informed of the
process;

the determination of the proportionate amount of federal funds available
to serve parentally placed nonpublic school students with disabilities under
this paragraph, including the determination of how the amount was calculated;
including the proportionate amount allocated to students who are not residents
of New York State (NYS);

the consultation process among the school district, nonpublic school officials,
and representatives of parents of parentally placed nonpublic school students
with disabilities, including how such process will operate throughout the
school year to ensure that parentally placed nonpublic school students with
disabilities identified through the child find process can meaningfully participate
in special education and related services;

how, where, and by whom special education and related services will be
provided for parentally placed nonpublic school students with disabilities,
including a discussion of types of services and how and when these decisions
will be made, including direct services and alternate service delivery mechanisms;

how such services will be apportioned if funds are insufficient
to serve all children, and how and when these decisions will be made. (Note:
for all NYS students, the school district must provide services pursuant
to the student’s individualized education service program (IESP), regardless
of the apportionment of federal funds. For out-of-state students
parentally placed in NYS nonpublic schools, the school district would need
to consult on how such students can participate equitably consistent with
the federal proportionate share of IDEA funds.); and

how, if the school district disagrees with the views of the nonpublic school
officials on the provision of services or the types of services, whether
provided directly or through a contract, the school district shall provide
to the nonpublic school officials a written explanation of the reasons why
the school district chose not to provide services directly or through a contract.

I was provided the opportunity to express my views and to ask questions of
the school district pertaining to the aforementioned issues. I understand
that if I believe that the consultation was not meaningful, or that my views
and those of others were not given due consideration by the school district,
I could file a State complaint with the New York State Education Department
that identifies the area(s) in which I believe the school district did not
comply with the consultation process.

NONPUBLIC SCHOOL REPRESENTED: __________________________________

PRINTED NAME: ____________________________________________________

SIGNATURE: ____________________________________________________

DATE: _________________________

Attachment 3

Sample Letter to Parents who Place their Children in Nonpublic
Schools (written as if coming from the school district of residence)

Dear Parents:

This
letter provides information for you to be aware of if you are a resident
of this school district and you have placed, or are considering placing,
your child who has a disability or is suspected of having a disability in
a nonpublic school for which you would be paying tuition. The federal
Individuals with Disabilities Education Act (IDEA) and State law require
the school district where the nonpublic school is located to assume
responsibility to provide special education services for your child. The
following information is important for you to know:

If you place your child in a nonpublic school and wish your child to
receive special education services while enrolled in that school, you must
request those services in writing no later than June 1 before the school
year in which services are to be provided. If your child is first identified
as a student with a disability after June 1 and before April 1 of the current
school year, you may submit your request within 30 days after your child
is first identified.

Transportation requests to and from your child's home to the nonpublic
school should continue to be submitted to us (i.e., the school district
where you legally reside) by April 1 of the school year before transportation
is to be provided in accordance with district policy.

If you have placed your child in a nonpublic school and, while the child
is enrolled in that school, you suspect that your child has a disability
and you wish to have your child evaluated to determine if special education
services are needed, you must contact the school district where the
nonpublic school is located to request an evaluation to determine your
child's eligibility for special education services.

In order for us to share special education information about your child
with the school district where the nonpublic school is located, we must
have your written consent.

If the nonpublic school where you place your child
is located within the geographic boundaries of another public school
district, the public school district in which the nonpublic school is
located will arrange for and provide the recommended services for your
child, including conducting special education individual evaluations,
Committee on Special Education (CSE) meetings and developing an individualized
education services program (IESP). An IESP must be developed in the same manner and with the
same contents as an individualized education program (IEP). It is
called an IESP to distinguish it from the IEP that would be developed if
your child were reenrolled in our public school district.

If the nonpublic school where you place your child is located within
the geographic boundaries of our public school district, we will continue
to provide special education services to your child, pursuant to an IESP.

If you are a resident of New York State and the nonpublic
school where you place your child is located in another state, your child
may not be entitled to any or all of the special education services he/she
might have received if enrolled in a public school. In this case you must contact
the school district in the other State where the school is located and
they must determine your child’s eligibility for services and develop
a Services Plan, which will indicate the services to which you are entitled.

If you have a dispute regarding special education evaluations or services
provided for your child by the school district where the nonpublic school
is located, you should pursue resolution of these disputes with that school
district.

If you
have any questions regarding these new requirements, please contact _____________
at _____________.